USLLS ADR Blog’s Post

Why Mediation is Inherently Trauma-Informed One of the things I love about mediation, and why I’m such an enthusiastic and avid practitioner of all things conflict resolution, is that it is inherently trauma-informed. This is in contrast to litigation and legal processes that are touted as the primary means of resolving legal disputes and other conflicts. I litigated for years early on in my legal practice, and I’ll be quite honest, I really loved litigating. My favourite part of litigation was cross-examination. I found it to be a very intellectually satisfying task, designing a cross-examination that focused on one tiny tidbit of evidence at a time, until I had boxed the witness in, and gotten the admissions I needed from them to make my case. But while I did enjoy litigation very much, what I could not ignore was the toll it took on clients/grievors, particularly cross-examination, even in seemingly innocuous cases like an overtime or scheduling grievance. In the book Truth and Repair, by Judith Herman, she talks about the legal system and its roots. Prior to court, people would settle dispute with physical violence – whoever prevailed in that battle, won the dispute. She points out that legal processes that take place in courts and tribunals are a literal stand-in for violence. This could be why so many people experience these processes as very violent, psychologically damaging, and life-changing in the worst ways. After observing the violence of the law, I couldn’t ignore it. And that’s when I shifted into mediation – it seemed to me to be a far more human and effective means of resolving disputes, that allowed for a trauma-informed approach (although we didn't use that language back then). To begin with, mediation is voluntary (or at least, it should be), so it immediately incorporates the trauma-informed principle of choice. Mediation also allows for empowerment. Parties to a mediation can select and work towards achieving the options that best meet their needs, wants and desires. It allows parties the experience of working through conflict and collaborating (another trauma-informed principle) and further empowering themselves by gaining that new skill. This is why I advocate for trying mediation even where the set process (for example, grievances in Collective Agreements) don’t incorporate mediation as a step – it’s such a powerful and effective tool from every perspective. Obviously there is still a lot of work to do for the trauma-informed mediator to ensure the individual elements of the mediation are trauma-informed (ex. reaching out to parties by email to allow them time to digest and respond when they’re ready, instead of phoning out of the blue) but at its foundation, its core, mediation is a deeply trauma-informed practice and one I hope to practice for the rest of my life. If you have any questions about mediation or would like to chat more about it, please feel free to reach out at any time! sharon@strategicworkplace.ca

Private mediation in India is an alternative dispute resolution (ADR) mechanism where a neutral third party, known as a mediator, assists the disputing parties in reaching a mutually acceptable agreement. It offers a confidential, voluntary, and non-adversarial way to resolve disputes outside the formal court system. Key Features of Private Mediation in India 1. Voluntary Process : Participation in private mediation is voluntary. Both parties must agree to the mediation process and can withdraw at any time. 2. Confidentiality: Mediation sessions are confidential, ensuring that the discussions and any agreements reached are not disclosed to anyone not involved in the mediation process. 3. Neutral Mediator: A mediator is an impartial facilitator with no authority to impose a decision. The mediator helps parties communicate, identify issues, and explore potential solutions. 4. Cost -Effective & Time - Saving : Compared to litigation, mediation is generally quicker and less expensive, making it an attractive option for many disputants. 5. Flexibility: The mediation process is flexible and can be tailored to the needs of the parties involved. This includes the scheduling of sessions and the manner in which the mediation is conducted. 6. Binding Agreement: If the parties reach an agreement, it can be formalized into a binding settlement. This agreement can be enforced in the same manner as a court decree. rivapte mediation in India is a promising alternative to the traditional court system, offering a more amicable, cost-effective, and efficient way to resolve disputes. With increasing institutional support and growing awareness, mediation is likely to play a significant role in the Indian legal landscape.

I'm delighted to share with immense gratitude that I've completed the assessment, earning accreditation as a Civil-Commercial Mediator from ADR ODR International Limited. This esteemed certification is endorsed by the Singapore International Mediation Institute (SIMI), the International Mediation Institute (IMI), and the Civil Mediation Council UK (CMC). I extend my sincerest thanks to Madam Dr. Nudrat E. Piracha for her unwavering support, and to the tireless efforts of our exceptional trainer, Ma'am Sarah Tarar. Throughout the intensive 48-hour training, I delved deep into the art of mediation, uncovering its unparalleled efficacy and its rich rewards in resolving disputes amicably. Mediation, far from being just another method of conflict resolution, stands out as a beacon of hope amidst adversarial proceedings. Unlike the courtroom battles that often leave both parties emotionally and financially drained, mediation offers a collaborative platform where voices are heard, and resolutions are crafted together. It's a process rooted in respect, understanding, and cooperation, where the focus is not on winning or losing, but on finding common ground and forging agreements that benefit all involved. Mediation empowers individuals to maintain control over the outcome of their disputes, steering away from the unpredictability of litigation. Furthermore, mediation fosters relationships rather than severing them. By promoting open communication and fostering mutual respect, it lays the groundwork for future interactions, be it in business or personal matters. In today's fast-paced world, where time is precious and relationships are invaluable, choosing mediation isn't just a practical decision; it's a commitment to fostering harmony, preserving dignity, and embracing the transformative power of dialogue. So, to all those embroiled in conflicts large or small, I urge you to consider the path of mediation, where understanding reigns supreme, and agreements are forged in the fires of cooperation.

🌍 Exploring Mediation Laws: India 🇮🇳 vs. USA 🇺🇸 Understanding the nuances of mediation laws is crucial for legal professionals navigating cross-border disputes is what i was coming across while doing the course with Rachna Shroff & LawswithRachna . Let's delve into key differences between India and the USA, illustrated with real cases: 1️⃣ **Legal Frameworks**: - **India**: Governed by the CPC Sec 89, 1996. In the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010), the Indian Supreme Court emphasized the importance of mediation as an alternative dispute resolution method. - **USA**: Each state has its mediation laws. For instance, in the case of Rojas v. Superior Court (2004), the California Supreme Court highlighted the enforceability of mediated settlement agreements. 2️⃣ **Court Involvement**: - **India**: Courts actively promote mediation, referring cases and enforcing settlements. The case of Krishna Texport Industries Pvt. Ltd. v. Denim Clothing Company (2010) showcases courts encouraging mediation. - **USA**: Courts may refer cases but typically maintain a hands-off approach to mediation proceedings. 3️⃣ **Confidentiality**: - **India**: The Indian legislation ensures confidentiality of mediation proceedings under the Act. The case of Ghafoor v. Indiabulls Financial Services Ltd. (2013) highlights confidentiality provisions. - **USA**: Confidentiality norms vary by state; for example, in California, mediation communications are generally confidential under Evidence Code Section 1115 et seq. 4️⃣ **Enforceability**: - **India**: Mediated settlements can be enforced as court judgments, as seen in the case of Shakti Bhog Foods Ltd. v. Kola Shipping Ltd. (2009). - **USA**: Settlement agreements are enforceable contracts. In the case of Taylor v. Johnston (2009), the Florida Supreme Court affirmed the enforceability of mediated settlement agreements. Understanding these distinctions is pivotal for effective dispute resolution strategies across international borders. How have these differences influenced your approach to mediation? Share your insights! 🤝💬 #MediationLaws #LegalInsights #CrossBorderDisputes #IndiaUSA #ArbitrationAndMediation #LinkedInDiscussion --- https://lnkd.in/dHzjvDwp

🤔 Did you know that there are different types of mediation with difference in intervention level? The two most common are facilitative & evaluative 📍Facilitative Mediation - is where a professional mediator attempts to facilitate negotiation between the parties in conflict. Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. - Pros Parties have more control over the outcome. The focus on common interests can lead to creative solutions that benefit both parties. Facilitative mediation can be less expensive than other styles since it requires fewer resources. - Cons It may not be effective for cases where one party has significantly more power than the other. Disputes that require legal expertise may not be resolved fully through facilitative mediation alone. 📍Evaluative Mediation - in direct contrast to facilitative mediation it is more likely to make recommendations and suggestions and to express opinions. Evaluative mediation is most often used in court-mandated mediation, and evaluative mediators are often attorneys who have legal expertise in the area of the dispute. - Pros Parties receive expert guidance that can lead to efficient resolution of disputes. Evaluations can provide clarity on complex legal issues. This style may result in faster resolutions compared to other styles since it relies on expert opinions rather than lengthy negotiations. - Cons It may feel less collaborative because the mediator may have more influence over the outcome due to their expertise. There is a risk that one party may feel pressured into accepting an outcome they do not agree with due to deference given to expert opinion. *Harvard Law School https://shorturl.at/knEH3 Weber Dispute Resolution https://shorturl.at/arGQ1

‘Proactive Mediation Advocacy’ – In a trust/estate dispute the participants [P’s] often loathe each other & refuse to meet face to face. That is Ok because if they did, in all likelihood tempers would be inflamed & the P’s positions would become even more polarised. That does not mean that the P’s Mediation Advocates [‘MA’s’] should not meet face to face & eventually with the other P. In a Zoom Mediation, the Mediator [‘M’] may set up a ‘Coffee Room’ [‘CR’] in which the MA’s can meet without their lay clients being present. The CR is a private room in which the MA's can meet & speak candidly to each other, thereby establishing a working relationship which eventually engenders respect & trust. So, toward the end of their 1st/2nd private session with M, i.e. after M has completed the 'house-keeping' & initial exploratory 'getting to know you' stage of the Mediation process, a MA [‘MA.1’] can be proactive by asking M to speak to the other MA [‘MA.2’], in order to request a CR meeting so that the MA's can introduce themselves to each other as professional negotiators, i.e. as 'fellows'. If MA.2 agrees, then, MA.1 can seize the initiative in the 1st CR meeting to switch the dynamic between them from ‘confrontation’ to ‘collaboration’, by saying something along the following lines to MA.2: ‘Thank you for meeting with us today. I will be corrected if I am wrong, but what I think you say about the facts and the law is … [i.e. to demonstrate to MA.2 that P.2's arguments have been heard & understood]. It is not my job to persuade you that your arguments will not succeed at trial. As you know we say that we will succeed. I am not interested in having an argument with you about whose view is right. I suggest that litigation is not going to be a great outcome for either you or for my client. The risks are … I am here because I believe that we can reach a principled and fair deal that is not only good for my client but also better for your client. I hope that you will work with me to achieve this today.’ If M facilitates an acknowledgment by both MA’s, that there is always an unquantifiable element of risk in all litigation for both P’s, then he can steer them away from 'wishful thinking' & toward 'constructive problem solving'. M can thereby bring about a paradigm shift in the P's/MA's approach to the resolution of the dispute. Subsequently each MA, in the presence of M, can take instructions from their lay client about how to switch the focus away from the ‘people’ & toward the ‘commercial problem’ which divides them. Once the proverbial 'penny' has dropped, i.e. about 'litigation risk', M can then facilitate an exchange of proposals in order to narrow & eventually close the gap between the P's positions. This is when M can say privately to each P/MA or to both MA's in a CR meeting: 'In practice, there are only 3 types of opening offer a P can make ...' For the full quote see: https://lnkd.in/eF_4KtcJ

The Lawyer's Role in Mediation: The ally you didn’t know you needed! When you hear the word mediation, you might think «that's for others, not for me», οr even,  «Ι’m a lawyer, mediation isn’t my field.» But are the roles really that distinct? Perhaps it's time to look at mediation from a new perspective and see how a lawyer can be not just part of the process but also a leading player .       A Strategic Ally The lawyer in mediation is not just a spectator watching both sides try to come to an agreement. Nor are they someone who loses influence. They are the strategic ally of their client, ensuring that their rights and interests are protected. In fact, mediation gives the lawyer the chance to develop more creative strategies for dispute resolution. Where courts may be restricted by legal rules and formalities, mediation offers room for flexibility. The Person Behind the Law Mediation isn’t just about legal matters. It’s also about people, emotions, relationships. It’s a time when the lawyer is called to show their human side, to stand by their client not only as a legal advisor but as a person. So, the lawyer doesn’t lose control in mediation. They are the ones who steer the process, protect their client, and ensure that the outcome is fair. Saving Time and Money We all know  legal battles can be time-consuming, costly, and often exhausting for clients.  Mediation offers an opportunity to avoid these hardships without sacrificing the quality of legal  support. The lawyer remains present throughout the entire process, ensuring that everything is done correctly and that their client fully understands what’s happening. A New Way of Thinking For lawyers who see mediation as the "enemy" of their work, it’s time to shift that perspective. Mediation is not a competitor. It’s an ally that can enhance their professional path and give them new opportunities. The lawyer who integrates mediation into their practice doesn’t lose anything. On the contrary, they gain a new way of thinking, a new approach, and a more flexible role.  Because at the end of the day, success isn’t just about court victories. It’s also about the ability to offer clients the best possible solution in the most efficient way. The Future of Law As disputes become more complex and clients look for alternatives that save them time, money  and effort, mediation will become an integral part of the legal landscape. And the lawyers who think outside the box and are ready to embrace this evolution will be the ones who stand out. So, if you’re a lawyer thinking "mediation isn’t for me," maybe it’s time to think again.  Mediation is the future ….and it might just become your next big asset!

Thoughts on Mediation: The Mediation Day Mediator Peter McLoughlin has written a couple of articles about mediation on The Barrister Group website. I'll be honest, I didn't particularly warm to his first article about preparing for the mediation day. You can judge for yourself - there's a link to it from the follow up. It was good, but didn't flow that well IMO. But his second article [on what happens in mediation when you bring the parties together] is, like The Godfather II and Toy Story 2, a thing of beauty. It's full of insightful observations on various aspects of the mediation process on the day of the joint mediation sessions. I particularly like this comment on what happens at the first breakout or caucus session... "The first breakout not uncommonly sees each party expressing disappointment at what was said and querying the usefulness of the mediation itself. However there will also hopefully be an acknowledgment that they were listened to with respect, enabling the mediator to start drawing out what it is believed salient issues and needs are and how best to engage the other side in addressing those. Frequently further information is required from the other side." We've all been there. That encapsulates it perfectly for me. And I also like this observation on the impact of the first offer... "Initial offers are seldom received with satisfaction, usually with affront and sometimes with a reference to the need for hats and coats: it has been said that the parties are never further apart than when the first offer is made. However offers have to start somewhere." I won't go through the whole thing - you should read it for yourself and maybe even send it to parties, particularly if you operate in commercial or industrial disputes. Now, I must go back and reappraise that first article: https://lnkd.in/e5DR86XG

“Reality check” in Mediation.  “Reality check” is a technique used in Mediation to help parties assess the strengths and weaknesses of their positions and the potential outcomes of a dispute. The Mediator during the private session with a party to the mediation, to facilitate a decision-making process of a party might ask, "If you sue other-side, who do you think will win? Why? What are the strengths of your case? What are the strengths of theirs? Have you asked an outside counsel to review your case and assumptions? How much will a suit cost? How long will it take to receive the verdict, which will be appealable in the higher court? What will be opportunity cost you may be paying? What will happen in the meantime? Is it worth waiting when the outcome is so uncertain?" By asking these questions, party is forced to think carefully about aspects of the dispute they may not have thought through yet. Also, if their perceptions or thoughts about certain things are not accurate, they may be corrected when they try to answer these questions. The critical assessment of these questions by a party to the mediation helps a party to weigh a cost viz-a-viz a benefit in litigating against continuing with the mediation.

MEDIATION What is Mediation? This is the process by which a third neutral party(mediator) intervenes into a dispute to assist the parties reach a mutually acceptable agreement. LEGAL FRAMEWORK FOR MEDIATION? Article 159(2)(c) of the Constitution of Kenya 2010, prompts courts and tribunals, in exercising judicial authority, to promote alternative methods of dispute resolution including reconciliation, mediation, arbitration and TDRM's. Civil procedure Act (CAP 21) Incorporates provision for court-annexed mediation under the mediation (pilot project) Rules, 2015. Mediation Bill (2020) aims to provide a comprehensive legislative framework for mediation in Kenya, although it is not yet enacted. TYPES OF MEDIATION Court-annexed mediation and private mediation are the main broad branches of mediation. However, there are more categories under the broad branches; 1) Facilitative mediation - mediator facilities communication 2) Evaluative mediation - mediator provides an assessment of the strengths and weaknesses of each party's case and may offer settlement options. 3) Transformative mediation - focuses on empowering the parties and improve their relationship. Why choose/opt for mediation? - Faster resolution compared to court litigation. - Cost-effective. - Confidential and non-adversarial. - Preserves relationships. - Party autonomy. - Flexibility.